HOUSING DISCRIMINATION SPRING 2008:
INFORMATION MEMO #1 (1/12/08)
TABLE OF CONTENTS
A. COURSE OVERVIEW & TENTATIVE SCHEDULE
B. INFORMATION ABOUT THE COURSE
C. INFORMATION ABOUT THE INSTRUCTOR
D. GENERAL INSTRUCTIONS FOR WRITTEN ASSIGNMENTS
A. COURSE OVERVIEW & TENTATIVE SCHEDULE
UNIT I. INTRODUCTION TO THE STATUTES (JAN 16-25)
Theories Of Statutory Interpretation
A.The Structure of the Statutes
B.Regulation of Discrimination in Housing: Some History
C.Theories of Statutory Interpretation
D.Concerns of People with Disabilities
UNIT II. PROVING INTENTIONAL DISCRIMINATION (JAN 30 -FEB 8)
Dialogue Between Courts And Legislatures
A.Direct Proof
B.The McDonnell-Douglas Burden Shift
C.Dialogue Between Courts and Legislatures
UNIT III. ACTIONABLE CONDUCT (FEB 13-29)
Agency Interpretation of Statutes
A.Introduction to Agency Interpretation of Statutes
B. Broker’s Offenses:
1. Insurance Redlining
2. Steering
3. Blockbusting
C.Constitutional Defenses I: Freedom of Speech
D.Discriminatory Advertising
UNIT IV. DEFINITIONS (MAR 5-21)
Statutory Drafting
A.Introduction to Statutory Drafting
B.Definition of Race Under the Civil Rights Act of 1866
C.Definition of “Handicap” Under the FHAA
D.Definition of “Marital Status”
UNIT V. DEFENSES TO INTENTIONAL DISCRIMINATION (MAR 21-APR 4)
Canons of Construction
A. Constitutional Defenses II
1. Religion
2. Privacy
B.Non-Statutory Defenses
1. Defenses to Sex Discrimination
2. Integration Maintenance
C. Introduction to Canons of Construction
D.Statutory Defenses
1. Religious/Private Club Exemption
2. Smallholders’ Exemptions
3. Occupancy Limits
UNIT VI. NON-INTENTIONAL DISCRIMINATION (APR 9-25)
Legislative History
A.Disparate Impact Claims
B.Introduction to Legislative History
C.Reasonable Accommodations for People with Disabilities
D.Concluding Thoughts
B. INFORMATION ABOUT THE COURSE
Welcome to Housing Discrimination. This class will introduce you to the federal statutes that prohibit various forms of discrimination in the housing process and to a few related state statutes as well. In addition to exploring these statutes (and the cases and regulations interpreting them), we will focus on two other sets of questions.
First, we will spend a lot of time reading and talking about how courts and lawyers deal with statutes, asking questions like: How do legal arguments about statutes differ from those involving cases or constitutions? How should courts interpret an ambiguous statutory provision? How should legislators write statutes to best achieve their goals?
Second, generally speaking, the statutes prohibit housing providers from making decisions based on a list of protected characteristics such as race, sex, religion and disability. Although the housing market may treat each protected characteristic somewhat differently from the others, for the most part, the statutes treat the different characteristics alike. Does this make sense? Should the statutes be interpreted or changed to reflect what we might call “differences among differences?” In particular, we will examine and compare the treatment of discrimination based on race and discrimination based on disability.
My hope is that the important social issues that underlie the course (and that we will discuss frequently) will make the hard work of parsing the statutes more interesting. After all, what is often at stake in these cases is some people’s ability to acquire or retain housing and other people’s ability to control the use of their property. For many of you, the material we will cover in this class represents part of the reason you went to law school: an attempt by the government to remedy a pernicious social ill. Equal access to housing has become a fundamental principle of American civil rights. However, as we will see, the details remain complex and controversial. My prior classes have found the material fun and challenging to work through.
Mechanics of the Class
Materials: We will work primarily out of materials I’ve developed, all of which will be posted on the course web page. Initially you will need to print out the Statutory Supplement and the materials for Unit One. Other materials will be posted as they are completed. The page can be found at:
You can also access the course page by going through the UM School of Law homepage to the faculty directory to my website.
During the course of the semester, I will also post syllabi and assignment sheets, old exams and model answers, and “Information Memos” like this one. Future Information Memos will contain comments and model answers on your written assignments and clarifications of points from class discussions and student e-mails.You should treat these memos as required reading for the course.
To facilitate cross-referencing the statutes while reading and discussing cases, I strongly suggest you keep a hard copy of the Statutory Supplement separate from the rest of the course materials and put it in its own binder. You should bring the Statutory Supplement to every class along with any materials assigned for that day.
For those of you particularly interested in the social and political issues related to racial segregation or who just want a richer understanding of the course, I recommend that you read D. Massey & N. Denton, American Apartheid. I have put copies on reserve (under the name of the course) at the circulation desk in the library. There also are relatively cheap used copies available, e.g., on amazon.com. My suggested timetable for reading American Apartheid is as follows:
Chapter 2 By January 18
Chapters 3 & 4By February 6
Chapters 1, 5, 6, 7By March 26
Chapter 8By April 9
It will not interfere with the class at all if you read ahead. If you choose to read some or all of the book, I suggest that you try to allocate your time so as to be able to read each chapter as a single block. You will probably find it useful to write up a short summary of each chapter for your own use (particularly if you read ahead) that includes the major points the authors made and your reactions to them. Try not to get bogged down in the details of the (extensive) statistical information; instead try to get a grasp of the general thrust of the authors’ arguments.
Class Meeting Times, Cancellation, and Make-up Minutes: My experience strongly suggests that eighty-minute classes push at the limits of many students’ attention spans and bladders. We thus will take a ten-minute break around 11:40 and extend most classes until 12:30. Occasionally, we will have to finish at 12:20 to accommodate an event in the room scheduled for 12:30.
We will not have class on Friday, February 22 (I will be out of town for a conference). To make up the lost class time for this class and for the classes we have to shorten, I will extend three classes until 1:00 p.m., obviously with the usual ten-minute break. I tentatively have scheduled these extended classes for Wed. March 26, Wed. Apr. 9 and Fri. Apr. 18. If any of these dates presents a significant problem, please let me know as soon as possible.
Attendance: I will circulate an attendance sheet at some point in every class after the first one, usually at or near the beginning. Absent extraordinary circumstances, if you miss more than five classes for any reason, I will take points off your final exam score. If you arrive after the attendance sheet passes your seat, you will be marked as late. Three latenesses will count as one absence. If you are absent because of an illness or another valid reason, you should file the appropriate form with the Dean of Students’ office, so that, in the event of some later emergency, I can consider whether earlier absences were for good reasons, and so I can excuse your absence for purposes of class participation if you were on-call.
Office Hours and Other Out-of-Class Contact: My spring semester office hours will be Mondays from 9:30-11:00a.m., Wednesdays from 3:30-5:00 p.m., or by appointment. You can set up appointments with me in person or by leaving a message on my voice mail (305-284-3914) or e-mail <>. My assistant does not keep my calendar, so you can only schedule appointments with me directly.
Feel free to stop by my office (Law Library Room 280) without an appointment. If I’m free, I’ll be happy to talk to you; otherwise I’ll make an appointment for a later time. Note that I also teach Antitrust (MW 2:00-3:20 p.m.) and I am likely to be preparing for class during the hour before either class, so these are not optimal times to stop by absent a crisis.
If you have questions about the course or about law school generally, e-mail is a good way to communicate. I check my messages at least daily during the work week, and I am likely to respond as soon as I get the message. If I think a question you ask is worth sharing with the class, I may copy your question and my answer and circulate them to everyone, deleting your name and other references to you.
In addition, as soon as I’m finished grading my fall exams, I will start going to lunch once or twice a week with groups of students from the class to get to know you a little better and to give you an opportunity to ask questions or vent about what ever is on your mind that week. I’ll pass around a sign-up sheet in a coupler of weeks for those who are interested.
In the Classroom
Courtesy: Room 352 has rather challenging acoustics and noises made in the student seats tend to echo and make it difficult for you to hear one another. Please try to minimize unnecessary noise. I get particularly annoyed when students talk to each other while another student is trying to address the class. If you do this, I will assume you wish to participate and will call on you, whether or not you are on call. I also may tell you to be quiet. There is a time-honored method of communication during class that does not annoy others anywhere near as much: pass notes!
In addition, it is very distracting to myself and others when people interrupt the flow of the class by arriving late. As a courtesy to me and your fellow students, please try to be seated and ready to start when the class is scheduled to begin and again at the end of the break. If you are late, please come in quietly, and sit in one of the empty seats on the side of the room unless your regular seat is on an aisle. If you interrupt me by clambering into your seat or (worse) by crossing in front of me while I’m talking, I will feel free to embarrass you about it.
The proliferation of electronic devices in the new millennium has led to new high tech versions of discourtesy that I request that you avoid. Before coming to class, turn off cellular phones and pagers that beep. If you use a laptop computer in class, turn the sound off. I find listening to the Windows theme music in class quite irritating, particularly after we have started to work. When using the laptop in class, only bring up onto your screen your notes, the course materials, or programs that consist entirely of text. Do not open computer games, movies, or other internet sites containing pictures or video, all of which can significantly distract the students sitting around you. If you violate this rule, I will give you the option either (1) to stop bringing the computer to class for some period of time or (2) to take a penalty to be deducted from your final exam score.
Discussion Questions, Reading Assignments & The Panel System:After each case or set of cases in the course materials, I have included a set of “Discussion Questions.” These questions will be the primary focus of our class time. Each time I post new course materials, I will post an updated assignment sheet on the course page that will include a rough schedule for each class of what materials you need to read and of the Discussion Questions we will cover. You will get the most out of the class if you to try to answer the questions thoroughly before the class in which we discuss them. If I ask you to make a list, really make the list. If I ask for arguments about a particular topic, try to formulate arguments from at least two different perspectives. In the end, most of you will learn best if you work through the questions fairly thoroughly by yourselves, then refine your answers after the class discussion. We will not spend class time on every Discussion Question, but you should find that thorough preparation of all of them will pay off in understanding the material and the themes of the course.
To facilitate high quality class participation, I employ a panel system. I will divide the class into five roughly equal panels (in this semester of presidential politics, named after states with early primaries or caucuses). I will then assign much of the material we read and the accompanying Discussion Questions to be the primary responsibility of one particular panel. At the end of the third class, I will ask you to turn in a list of people you’d like to study with (if any) so I can put you on the same panel. This will facilitate your preparing together when you will be on call. I expect all of you to be fully prepared for the first four classes. After that, the panels will take over.
Your assignment sheets will indicate which panel is on-call for which assignments. During class, anyone is free to volunteer to participate whether or not they are on call, but I generally will start the discussion of assigned material by calling on people from the responsible panel. Note that you are on call for material, not for a particular time slot. Thus, if the discussion of a case at the end of a class continues until the next meeting, so too does your responsibility.A few of the discussion questions on the assignment sheets will be listed as “ALL.” All of you should prepare those questions as though you were on call. I will deduct points from your final grade if you are unprepared more than once when called on for material you were specifically assigned.
When you are on call, be prepared to discuss your assigned material carefully. If your panel has primary responsibility for a case, make sure you are familiar with the important facts, the holding(s), and the primary rationale(s). If you are assigned discussion questions, don’t merely skim them; be prepared to discuss them in some depth. In addition, if I ask you to respond to one of the Discussion Questions, I expect you to be ready with an answer or to be able to find it very quickly in your notes or on your laptop. Please don’t keep the class waiting while you fumble through your notes or scroll through several screens.
Life does not always permit you to be as prepared as you’d like. If I call on you and you have not done the reading, please say so. I will try to give you questions you can answer regardless or I will ask someone to fill you in and then ask you questions. I won’t let you off the hook, but I will try not to embarrass you more than you will be already. If you are on-call and haven’t done the reading, show up anyway. If I intend to call on you and you are missing without excuse, I will treat it as being unprepared when called on.
The panel system has several advantages. From your perspective, knowing in advance when you are likely to be called on can help you make decisions about allocating your time. You can spend more time preparing for the material for which you are responsible and, as part of this more intensive preparation, take the opportunity to review earlier material. In addition, you can do this preparation with study partners you have chosen. From my perspective, this extra preparation helps ensure that the students I call on are ready. In addition, my experience is that panel members I don’t call on often volunteer because they have thought through the material carefully.
The major drawback of the panel system is that some students don’t prepare very much when they are not on call. I urge you to approach class responsibly. The purpose of the class is to try to develop and improve important lawyering skills. You obviously will learn more if you do the reading and show up than if you don’t. And the more of you that regularly prepare carefully, the more we all will get out of the class. On the other hand, don’t skip class merely because you fall behind in the reading. You are likely to get even more lost if you miss the class discussion as well. I often use class time to try to put material in context and to make connections between different parts of the course.
In-Class Discussion Groups: Every couple of weeks, we will spend about half a class divided into groups of 8-10 students spread around the room addressing one or more specific Discussion Questions. One student will be appointed the “facilitator” and be responsible for keeping the group on track and ensuring that everyone has a chance to speak. Another student will be the “recorder,” responsible for taking notes and providing me with an organized summary of the discussion (not a transcript) within a couple of days. I will then write up an overview of the ideas that came out of your discussions, supplemented with the work of prior classes.
We will do this for the first time during the second class meeting, dividing up alphabetically. Once the class roster is finalized, I will randomly assign you into groups for each discussion. Prior to each group discussion day, I will post on the course page a chart indicating, for each group, the participating students, the facilitator and recorder, the precise questions to be addressed, and the location in the room where the group will meet.